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tv   Moore v. Texas Oral Argument  CSPAN  March 29, 2017 3:32pm-4:38pm EDT

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court reiterated that the inquiry into whether somebody is intellectually disabled, for that important eighth amendment purpose, should be informed by the medical community's diagnostic framework and by clinical standards. texas has adopted a unique approach to intellectual disability in capital cases in which it prohibits the use of current medical standards. it relies on harmful and inappropriate lay stereotypes including the so-called bresineo factors. it uses unwarranted causation requirement, and most fundamentally, it challenges and disagrees with this court's core holding in atkins, namely that the entire category of the intellectually disabled, every person who is intellectually disabled, is exempt from execution under the eighth amendment. >> that's a long laundry list of
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objections you have. your question presented, though, focused only on one, which is that it prohibits the use of current medical standards and requires outdated medical standards. and i think several of the other points you made are not encompassed within that question presented. and maybe they're questions that should be looked at. but they don't seem to be covered by that. i mean, in what -- you mentioned the correspondence with clinical practices. has that changed? did texas similarly depart from clinical practices under the old standard as it is under the new? >> it did. the prohibition on the use of current medical standards aggravates and exacerbates that. if i could address your honor's question about the question presented, first of all, it is woven into the texas court of criminal appeals' decision and the judgment that is before the
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court, because the texas court grounded its determination on the prohibition of consulting and using current medical standards on its bresenio framework. the court said what we decided in bresenio, that governs, including the clinical standards at the time, but also its view that medical standards generally are exceedingly objective. that was very important to the court in its determination here. >> i have the same question as does the chief justice. it just seems to me the question presented doesn't cut to the heart of the case as you describe it. my understanding of your argument, and again, i don't think it's wholly reflected in the question, is that whether you use the most current or even slightly older medical standards, there's still a conflict. am i right about that, that that's your theory? >> yes, your honor.
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if i could add one point though, it is that the current clinical standards accentuate the conflict, make it even more clear. and what has happened -- >> we wouldn't need that, would we, mr. sloan? we could say the bresenio standards are in conflict with the old atkins standards as well as the new ones. there wouldn't need to be a difference between the old ones and the new ones for you to win this case. >> that's correct, your honor. >> you open the door by a question presented that is a little more eye-catching, which is that they prohibit the current standards and rely on the outdated one. that's all it says. and i'm just wondering if you got yourself in the door with a dramatic question presented and are now going back to a concern that was just as present, as i understand your argument, under the old standards. >> so two points on that, your honor. first, again, as i was saying, it is woven into the court of criminal appeals' decision.
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one cannot look at their judgment on the prohibition on the use of current medical standards without looking at the framework in which they grounded it. secondly -- >> i'm sorry to interrupt, mr. sloan. can i just make sure i understand that? what you're essentially saying is that the court of appeals said you are barred from using new standards, you must use the bresenio standards. so the two are flip sides of the same coin. and what the holding was is, you must use bresenio standards. now, your qp reflected their framing of the issue, you can't use new standards, you must use the bresenio standards. but you were just reflecting their essential holding, which is we have this bresenio case and you have to use it. >> that's exactly right, your honor. >> then why didn't you say that? really the question presented talks about a comparison between current and outdated. it's pretty dramatic to say you can't use current standards, you're only using outdated. it's quite a different question, they use the bresenio standards
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and they shouldn't. you don't think they should have used the bresenio standards under the old medical standards, do you? >> no, that's correct. but i think, your honor, first of all the question presented, we absolutely stand by it, because they have prohibited the use of current medical standards and instead they have required the use of the 1992 standard. >> let me ask you the same question in different terms. you can tell me whether this is not a fair paraphrase of your question. and if you can give me a yes-or-no answer to this question, i would appreciate it. under hall and atkins, must the state use current medical standards for example dsm-5 as opposed to older standards for example dsm-iv? yes or no? >> no with that wording, your honor. >> then i don't know how you can recover on the question -- you can prevail on the question you presented to us. >> your honor, the question presented talks about prohibiting. if your honor had said can a state prohibit -- >> i don't understand what you mean by prohibit.
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you mean prohibit the lower courts from using a standard different from the one that the court of criminal appeals has said is the standard that has to be used everywhere in texas, so each trial level judge would apply a different standard, whatever that judge thinks is the right one? >> and that the court said prospectively, the law of texas is that you are prohibited from using the current medical standards. >> you think that this is a question of trial court discretion, a trial court has the discretion to use the newer standards as opposed to the standards that the court of criminal appeals says are the appropriate ones? >> no. i don't think it's discretion. i think the court has prohibited. the court said that the state habeas court said -- from 1992. it's helpful to consider if the
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court of criminal appeals decision stands, how -- >> mr. sloan, to cut to the chase of the underlying question, was the criminal court of appeals using any clinical standard? medical clinical standard? >> no, your honor. >> mr. sloan, i don't think you finished answering my question. there are two -- let me rephrase it this way. there are different things in the bresenio opinion. one is the medical standards that are taken from the medical approximatio publications that were current as of the time of the decision. then there are these additional considerations. and that's what's regarded as the bresenio factors. disregard the latter. the first part are medical standards that were current at
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that time, are they not? >> well, i respectfully disagree, your honor, in this respect, because what the court said in bresenio was after talking about following the 1992 standard, it said, we view the medical standards as exceedingly subjective. that's the wording that the court used in bresenio. and that's why we're going to come up with these bresenio factors on their on that are in fact anti-clinical because they're based on these lay stereotypes. that's exactly what the court said here as its justification for its prohibition on the use of current medical standards. its justification as it says, 6-a to 7-a of the petition appendix, is the court's longstanding view about the subjectivity surrounding the medical diagnosis of the intellectual disability, which stands in sharp contrast to what this court has said in atkins and in hall, where in atkins the
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clinical definitions were fundamental. as this court said in hall, the clinical definitions were a fundamental premise of hall. it has to be informed by the medical community's diagnostic framework and there's no way it can be if there's an exclusion and a prohibition on using current medical standards. just alito -- >> there is no doubt about what the texas court said. its marching orders for texas courts, it said, the habeas judge erred by employing a clinical definition of intellectually disabled, rather than the test we established in bresenio. the test we established in bresenio is stated sharply and clearly as the test that must be applied by texas courts.
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is that how you read it? >> yes, exactly, your on. >> on page 6-a. >> that's right. and i think it is helpful here to consider how atkins' adjudications, obviously this is a vitally important issue, and how these adjudications will proceed in texas in light of the passage that justice ginsburg just quoted, the critical passage, is that to judges, to lawyers, and to clinical experts testifying in texas, the message is clear and unmistakable. you may not consult or rely on current clinical guidance. and so think about that from a clinician's perspective, a clinical expert who has been entrusted with evaluating and making this vitally important evaluation of somebody, whether they're intellectually disabled. that person has gotten a clear and unmistakable instruction. you have to go back to the 1992
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standards, you can't consider the standards since then. >> i think it's more than that. it says you have to go back to bresenio. and bresenio has these seven factors that are not consistent with the old standards just as they're not consistent with the new standards. >> that's exactly right, your honor. and it's also part of a broader problem and framework interwoven with bresenio itself, where bresineo is setting up a framework where it's saying only those who are the most severely intellectually disabled are exempt from the death penalty. it's an open question, it says in bresenio, whether those who are more mildly intellectually disabled or mentally retarded as they said at the time, are similarly exempt. this court in atkins had just held there is a bright line exemption for the intellectually disabled. >> i tried to ask myself if the court could say, use the bresenio factors first, and after that, if you find no
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intellectu intellectu intellectu intellectual disability, then turn to the standards. but as justice kagan pointed out, there's a conflict. >> there absolutely is. it's all rooted, both the conflict with clinical standards generally and the prohibition and use of current medical standards and the hostility to current medical standards. >> but it is true that atkins left some discretion to the states. what is the rule that you propose for how closely state standards must hew to medical practice? >> i think it's the rule that the court announced and explained in hall, which is that the state must be informed by the medical community's diagnostic framework. and so what i understand that to mean is that -- and of course as the court said in atkins and hall and brumfield, the clinical evaluations are very important. if a state wants to conflict with or disagree with the clinical standard, then there has to be a sound reason for
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doing so. and i think in hall, this court identified several considerations. there are four considerations in particular that would go into evaluating whether there is a sound reason for doing so. the first is, is there generally a clinical consensus on that point. the second is what do other states do on that point. the third is, what does the state do in other intellectual disability contexts? tellingly here, texas uses the bresenio factors and prohibition on current medical standards only in the death penalty context. in no other intellectual disability context. as the court explained in hall, the condition, as the court said in hall, of intellectual disability has applicability far beyond the death penalty. when texas treats it very differently with much more severe restrictions on finding intellectual disability only in the death penalty, that is at the very least a major red flag.
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>> justice sotomayor. >> can we go to the practical application of what you're saying for a moment. let's take the decision of the cca here, all right? they found two prongs that mr. moore had not met, that he couldn't prove that he was clinically intellectually disabled, that his iq was higher than what was generally recognized clinically. what did they do wrong with respect to that prong? and then secondly, with respect to the adaptive function prong, what did the court below do wrong? identify the two ways in which what they're doing and how they're applying the standards we're talking about were in error. >> i will, your honor. as to both, they are in very sharp conflict with clinical guidance generally and especially clinical standards. beginning with the inter-lex
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actual deficits in the iq, the court of criminal appeals accepted as valid an iq test of 74, which the court explained in hall, with the standard error of measurement with take it down to 69, well within the range of intellectual disability. what the court did here, it chopped off the lower end of the standard error of measurement. it then treated the 74, the number 74, as decisive, and as in and of itself determining that mr. moore could not establish an intellectual deficit and could not establish intellectual disability, which conflicts with clinical standards, current clinical standards, and this court's decision in hall. the reason the court gives for lopping off the elower end of te standard of measurement, the court said he had a history of poor academic performance. of course that's not inconsistent with intellectual
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deficit or disability. the court says, he may have been depressed because he was on death row. there's no death row -- there's no rule that if somebody is on death row you cut off the lower end. >> there's no medical rule to that. >> that's right. >> no medical support. >> there's no medical support. there's no clinical basis for that. and the court points to what it views as a depressive episode from 2005 which was 16 years after he took the examine in 1989. >> i thought the most significant part of its alleged error by you in your briefs were that it assumed that things like poverty, poor nutrition, poor performance in school, were no attributable to intellectual functioning but to his lack of a good home, essentially. why is that clinically wrong? >> because, your honor, so in terms of the causation requirement, which is i think what your honor is referring to,
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there are three major problems with the way the court dealt with causation. >> i think the court's -- would you say something about the adoptive behavior? that may be a stronger leg. >> why don't you deal with justice sotomayor's question first, then justice alito's. >> thank you, your honor. in terms of the causation, first, the court says at page 10-a of the petition appendix, intellectual deficits caused it rather than some other cause, like the causes your honor is talking about. and it is well understood as a clinical matter that there is a very high incidence in intellectual disability of multiple causation, comorbidity. that view of the inquiry is, rather than some other cause, is completely at odds with the clinical understanding to begin with. secondly, factors that the court points to include things, in addition to what on your was
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saying, again, poor academic performance, his terrible childhood abuse which he suffered, which not only do not detract from a finding of of interlekt you'll disability. third and very importantly is the aaidd explains in the brief, from a clinical perspective, there is absolutely no way to make the kind of showing that the court requires here about some other cause as a clinical matter. siment possible to do. this court talked about the risk and the threat that atkins would be turned into anulity. there is no requirement that turns it into anulity. >> now maybe can you respond. >> it's important at the outset to recognize certain points that run despite in the record. it's undisputed that at the age of 13 mr. moore did not understand the days of the week, the months of the year, the
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seasons, how to tell time, the principle that subtraction is the opposite of addition, standard units of measurement and numerous other deficits like that that are undisputed. >> what is the problem with their aanalysis at that point? >> four problems, your honor. one of them is that the court focuses on what it perceives as some strengths which it says outweighs the deficits. >> yeah, okay. on that one, is there consensus in the medical community that that's improper? >> yes, your honor. >> here's an article written by a number of experts, recent article from the journal of american academy of psychiatry and the law assessing adaptive functioning and death penalty cases. one of the experts was cited in the -- in one of the supporting briefs by a professional
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organization in hall which says that any assessment of adaptive functioning must give sufficient consideration to assets and deficits alike. so, what do you make of that? these are just -- are these quacks? this is dr. hogan drogen and mett. >> in their definitive clinical guidance that comes out once every ten years is very explicit that adaptive deficit inquiry focuses own deficits. and not on strength. and for two very, very important reasons. and the first is that clinical inquiry, when someone is impaired in their daily lives so focussing on impairments and second reason is that there is a very common stereotype and misunderstanding that if someone has strength they are not disabled and that both of those authoritative -- >> if both organizations, but i
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suppose a majority vote or something like that conclude one thing, but there are respect experts who disagree, you say the state is obligated? as a matter of constitutional law it follow the organizations? >> i'm not saying that, your honor. as i said to justice kennedy, hall identifies if the court will disagree. first one i mentioned is is there a clinical consensus -- >> you might be talking about two different things and i might be wrong about this. as i understand adaptive functions there are these particular areas of functioning that have been set out. and with the consensus is, is to say, well if you have deficits in four of these areas it doesn't matter that you don't have a deficit in another area. and that's what the consensus is. now within each area, people, psychologists, can look at, you know, within an area to
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determine whether you have a deficit. yeah, you have to look at what can you do and what you can't do to decide whether there's a deficit in that area. so the two things might not be in conflict at all. >> that's exactly right, your honor. or if there is a dispute for example about a particular skill. somebody says he cannot drive, proof on the other side that yes that the person can drive. >> so the question, i don't think can you answer orally, but i think that these cases, that you can point me to the answer, that's what i want. look, there will be a bunch of easy cases. and then there are going to be
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cases like your client. who has been on death row for 36 years. and there will be border line cases. and the reason they are border line is because the testing is right at the border. like an iq test. then you will put weight on what's called related limitations in adaptive functioning. a matter that on its face sounds as if it may be easy in some cases and tough in another. all right?
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what is a court supposed to do? are we supposed to have all those hearings here? i mean, you've made very good arguments for your client. you're probably several others in the country in different states which may have different standard. and if you have some view that the law in this area should be law, ie that it should be uniform across the country, point me to something. that will tell me how a district judge should go about making this determination. in border line cases. >> yes, your honor. >> my suspicion is there is no such thing. that's why i ask, there might not be. >> let me make two point. first of all, your honor, what do courts do? and i do think it's important that general principle this court was clear about in hall is being informed by the medical -- >> understand that what you are saying, whatever they should do, it shouldn't be what is here. okay. i got that point. i'm asking a different point. and if you want my true motive, i don't think there is a way to apply this kind of standard uniformly across the country. and therefore there will be disparity and uncertainties and different people treated alike and different people alike treated differently. that's my whole story. i want you to say no, you're wrong. there is a way to do it. what? >> your honor, i think the best places it look on this would be the aaidd current manual, 11th edition, as well as pages in the dsm-5 that address it.
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and it points up for different standards. for the first time, the 11th edition -- because of the problem with stereo types that if people have strengths they can't be considered intellectually disabled, for the first time, the current edition, very one the court said was off limits here, has an entirely new chapter in chapter 12 about the issues and problems of people who have high iq who are intellectually disable end at the high end and exactly the group that your honor is talking about. and accompanying this for the first time has a list of harmful stereo types which includes exactly that. the other thing that i do have to emphasize is that what everyone thinks about the application across the country, there is no question that texas is very extreme and stands along in its view that, of basically disagreeing with the core
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promise of atkins and repeatedly in its decision drawing extinctions between those are severely mentally retarded and those who are mildly and saying there is no exemption for those who are mildly. and the court of appeals says our task is to decide what a consensus of texas citizens thinks the line should be. this court in atkins had just decided for eighth amendment purposes the consensus of united states citizens. your honor, i would like to reserve the balance of my time. >> thank you, council. general keller? >> thank you, mr. chief justice. may it cleef the court petitioner conceded we could have used dsm-4 instead of current dsm-5 that answers the question presented and petitioner in the brief says
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there is no difference in language in texas's standard based on the aamr ninth clinical framework and current clinical framework. this case shifted to a discussion of the seven briseno evidentiary factors. the seven factors are grounded in this court's precedence as we point out in bullet pages of 53 to 55 of our brief. that what those go to is the second prong, adaptive deficits inquiry. all of those questions are asking, can someone function in the world. that's precisely what pennsylvania supreme court noted when it also endorsed the briseno factors. >> you describe these as coming from some source.
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but briseno listed the seven bullet points and didn't give a single citations of where anyone came from. >> it did, however this court, and pages 53 to 55 of our brief we go factor by factor and quote this court's precedence to show how they are congruent with factors this court itself considered and petition appendix 162-a the trial court adopted petitionals conclusions of law and that said that analyzing the facts under that second prong, even under the current aidd 11th, quote answered many of the briseno factors unquote. so the analysis done under the second prong of the framework, adaptive deficit prong, that will overlap with the factors. this is not a free floating test that negates or oviates the three-pronged test that texas uses and is part of the national consensus. >> would you agree with this, that the texas court of criminal appeals in briseno and other places made the clear its view that the texas can choose to
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execute people whom a complete consensus, 100% consensus, of clinicians would find to be intellectually disabled. would you agree with that? >> i don't believe that's what briseno opinion says. what it said is that it would adopt clinical standards. >> i'm asking about briseno and other court of appeals decisions. and i thought that you said this in your brief, that your view of the point of state discretion is that a person who everybody -- every clinician would be intellectually disabled, the state does not have to find to be intellectually disabled because of the consensus of texas citizens would not find that person to be intellectually disabled. isn't that premise of the court of appeals decisions? >> no. quite the contrary. let me very clearly state about
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the texas consensus language in the opinion. the briseno opinion flags the issue about what a texas consensus materialize on an issue. but the court then twice says it wasn't going to answer that question. it was not going to do that. that is for the legislature. instead what it did is adopt the standard in the texas health safety code -- >> i guess i just don't understand it. and i really don't understand it in light of your brief, which i will start to quote pretty soon. it seems to me what the texas court did is say look we are going to accept the three dimensions, adaptive deficit, iq and age. but with respect to quality and degree of impairment, i think that's their language, we're not going to accept the clinicians view so that people with mild impairment can be executed even though the clinicians would find those people to be intellectually disabled. >> briseno adopted cases and in cases since then -- >> i know it passed the
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three-prong test. the question is the degree of impairment within each of those three prongs and again it seems clear from your brief when you're talking about atkins didn't establish a national standard that you're saying too that texas -- and i guess i'm surprise by that by saying the texas courts need to follow clinical assessments of intellectual impairment because that's not what you say on pages 19 and 20 and 21 on your brief. >> it is true this court recognized there's a difference between a legal determination regarding eighth amendment called ability and medical diagnosis but briseno adopted amr-9. >> i'm sorry, good back to justice kagan's question. >> well he was talking about my question so go on. >> thank you, justice kagan. even with amr-5 this court sited that exact language in versions so in it is not the chase states
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have to categorically wholesale adopt the position of current medical organizations but what briseno did was in fact adopt the aml ninth. the precursor to the 11th and the commissioner applied brief says there no material difference between the 9th and 11th difference. that's why we aren't talking about the face of the amendment, we -- >> well i have a physical up unless you want to go, justice sotomayor. >> justice kagan, please. >> let me take one of the factors. it is what lay people think about the person growing up and relative to the assessment of adaptive function. no clinician would ever say that. clinicians say no that is like stereo typical lay person view of adaptive functioning which is different from the clinical view of adaptive functioning. but the briseno factor is clear that sort of .1 that you're supposed to rely on what the neighbor said. and what the teacher with
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absolutely no experience with respect to intellectual disability said. so that seems to be a very big difference between the briseno factors and clinical view of intellectual disability. >> and clinicians would also look those and in fact there is testimony at the penalty phase retrial about people, lay witnesses that knew petition eater the time so it's not that this is irrelevant evidence. now it's not going to be necessary dispositive. that will depend on the totality of the circumstances and the record on adaptive deficits. but this is probative evidence -- >> well this could trump everything and it says this could trump everything because of the underlying view of briseno and other texas views and --
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>> no, briseno did not say it could trump the three prong that texas consistently applied. >> i'm sorry mr. general keller. the three-pronged definition tells you have you to look to iq and look to adaptive functions and to youth. it doesn't tell you anything about what quality you look to and the extent of impairment within those factors. that's where the texas court insists on its freedom to go out on its own. >> may i note as a footnote only, can you continue, that in ex parte, the cca sent back a case by directing the lower court even though that court analyzed the case, the critical phase, it pairs to be acting as
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if the briseno factors are the clinical factors and are controlling even though they are stereotypes built into them. >> they are not stereotypes built into them. >> well the dma and all of the other clinicians that some mentally disabled people can have some adaptive functioning. idiot savants, for example. if s it your opinion that if someone can do math in their head that they aren't intellectually disabled. >> no -- >> how about if that same person has a job in nasa calculating the airspace shuttle launches. is that person not intellectually disabled simply because they can use that particular skill in a way that gains them employment?
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>> no. and what texas standard says is it looks to actually the current framework and says for adaptive deficit you look at conceptual and practical skills. but if i can address sosa, the cca reversed because it was categorically prohibited from looking at the facts of the crime. it doesn't say you had to use the briseno factors -- >> we're not reviewing sosa. can i ask the question about what the court did in this case? on pages 62-a and 63-a of the petition, appendix to the petition, it sets out three factors. then discusses those at length. on page 89, it says in addition, our consideration of the briseno evidentiary factors weighs heavily against finding. so is it clear that these evidentiary factors actually played an indispensable role in this case, which is what we are
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reviewing? >> no, they did not. in the body of the language it is talking about heavily weighted on the -- there was analysis that there was sufficient intellectual functioning on the first prong and deficits compton's testimony said i do not have the deficit to find a diagnosis and that is before -- that is a sufficient basis to affirm without getting into the briseno factors. >> are you saying that the briseno factors capture all individuals with intellectual disability? >> no, the briseno factors, there could be other circumstances or other facts in the record that would bear on the prong. that's why cca said these are discretionary. different ways of phrasing how you dot conceptual -- >> it is a huge problem in this area.
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because if you let one trial court judge apply it, and another one doesn't have to apply the menu, then you're opening the door to inconsistent results depending upon who is sitting on the trial court bench, something we try to prevent in capital cases. >> justice ginsburg, it is discretionary, what the cca said, and the trial in appellate courts may ignore some or all of them if they are not helpful in a particular case. this is just looking at the record. is there evidence on any of the factors. if it's not, that's not helpful this that case. justice kennedy, as far as the number of people that would or would not be covered by the factors, the cca used briseno to grant relief and they also affirmed trial court decisions -- >> but the thing is, of the petitioner's brief, that briseno factors are intended to really limit the classification of
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those persons with intellectual disability and defined by almost uniform medical consensus. >> and cc has never said that purpose of these factors is to screen out individuals and deny them -- >> isn't that the effect? >> no. allstein granted relief by looking at briseno factors. four cases just mentioned -- >> well, general, there are going to be cases in which the per sanno factors show that they are disabled but that's not the question. the question is can they be an exhaustive list? >> the briseno factors are not an exhausted list and they have never been treated like that. >> but the percentage of these factors was that the court said the clinical standard are just too subjective and they don't reflect what texas citizens think. both of those things. they are too subjective and they just reflect what clinicians
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thing, not what texas citizens think. that's the genesis of the standards. which suggest that justice kennedy is right about how they operate and how they are intended to operate. >> the court did mention subjectivity. the consensus is not part of the basis to do that pap what the cca was trying to do is take the adaptive deficit prong. in the phrase of limitations and adaptive functioning and put that into concrete terms where can you put it into a record. >> there are two things wrong possibly with the factors we've heard. one i can't deal with at this moment in oral argument. can you go through them, they are in the briefs, one by one, and say reading them, they are not consistent with or reflect error when compared with the psychologists think. i can't go further with that here. the other is the question of why
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did the texas court write these. i have to admit in reading through briseno, i came to at least pause when i read the word, that they are trying to figure out what to do in border line cases and what they've done is not, you know, i understand it. but they say we have to figure out the level at which a consensus of texas citizens would agree that a person should be exempted from the death penalty. when i read that, and when i read there are other words on page 6 of the reported opinion, when i read other things they said, i thought that well they are trying to do this which we do often if law, but what's the purpose of this? the whole purpose is to try to figure out who not to execute because of their functioning. the way they function.
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that's the purpose. let's look at what texas citizens would think about this person and let's try to get standard that reflect that. i really did think that's what they are trying to do in their opinion. they are arguing that's the wrong thing to try to do in this instance. first produce nonuniformity among 50 states. among the states that have the death penalty. and others are not who the states think about who should be executed. that has nothing do with it. oddly enough. in this case what has to do with it is a technical matter about this individual that would free some while subjecting others. to the death penalty irrespective of what texas citizens think. so do you see my question? what are they up to in this opinion? i think they were up to going back to the citizens of texas. you saw what i think they are up to. >> you tell me if i'm right, wrong or what. >> i believe that's mistaken because there are two points after that discussion of texas consensus where the court said and this is briseno. and the court of individual cases, we decline to answer that question about the texas consensus without significant greater assistance from
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citizenry act between legislature. and legal determination and medical diagnosis and court says that question is not before us in this case because it goes on to adopt the aamr ninth clinical standard. >> mr. general, is it your view that what texas is trying to do is to determine who is on the critical border line as opposed to trying to determine the type of mentally disabled and that it thinks it should be executed? >> yes. >> is it fair to say that in texas a mildly disabled person is unlikely to be considered disabled by the cca under the briseno factors? >> no. if there was a diagnosis of disability, even mild -- >> that is one of the cases that you cited to me where someone was clinically diagnosed as mildly disabled, and the cca said under the briseno factors that they should not be
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executed. a lot of cases you provided me with, there was moderate and mostly severe but moderate to severe disability but is there anyone with mild disability that the briseno factors would find sufficiently disabled? >> well, the case that i can point to for the cca looked at the briseno factors and granted relief. >> did they find him mildly disabled? >> the testimony there is on
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adaptive deficits and i believe the mild, whether it is mild or moderate goes towards more iq scores. the question is whether texas is prohibited current standards from being use and is airing by outdated standard. texas is not prohibiting the use of standard. >> why did it go through so much trouble in saying that it wasn't going to use current standard? that it was only using older standard and briseno factors? >>. >> because the current standard does not have the related he inquiry. that an extraneous part of the case. that's the main reason why they said trial court you're not following our -- >> i understand the degree of relatedness has no support anywhere. would that have been a valid reason for discounting the current clinical standard?
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as that that's a second alternative holding here. it is valid for texas and other state to have the requirement. that's in the dsm-5. they talk about being directly related but doesn't flush that out. so we are talking about the application of that and this is an odd case to decide the issue when the second alternative holding and no state on this causation point. that's the coleman case from the tennessee supreme court sited in the reply grief. we are not aware of any case this which the relatedness inquiry is the point in which the atkins case was denied. >> i'm not sure how i can accept your characterization of the cca decision when basically it's saying, his poor intellectual functioning and iq test which happens when he is younger were not related to his intellectual abilities. they were related to his poverty, his morbidity factors. if they're saying that, how are you saying they weren't finding that he wasn't intellectually
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disabled because of those other factors? >> well it just wasn't -- >> that's how i read their decision. >> it wasn't just the cca saying that, it was relying on testimony. >> wait a minute, testimony of compton was having hooked at all of the iq tests, was i'm not sure. it is probable he is intellectually disabled by iq but he wouldn't qualify in my judgment because of his adaptive skills. even the state's own expert said it was probable that he was intellectually disabled. >> the state's expert said it would have been bored her line on intellectual facing. this is a second court of holding the court doesn't have to reach. it looked at testimony from petitioners retrial in 2001 when petitioner affirmatively argued he was not intellectually
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disabled and the petition ear own expert agreed -- >> that is doing that -- >> actually the a the time, henry would have been decided and there would have been a valid base tois say, petitioner, i'm interlekt you'lly disabled. the strategy which was a reasonable strategy from counsel was to say that petitioner would be able to grow in prison and, therefore that, was mitigation evidence he could be reformed. but, right, the petitioner expert agreed with the prosecutor, the petitioner was nowhere near interlekt you'lly disabled and said lack of education is to blame. >> that happened in atkins, too. regrettably, until we decided that mental disability was a ground to excuse execution, many mentally disabled defendants were represented by counsel who
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thought that arguing differently was a better strategy. >> of course. that would have been on the books. there would have have been an advantage to argue that. regardless if that is not controlling here, the cca credited compton's testimony as the most reliable expert, the only forensic psychologist who reviewed the records and personally evaluated petitioner for interlekt you'll disability. compton said i don't have the deficits for diagnosis. this is a fact found application of the test. the question presented here is whether texas is well established three prong test for interlekt you'll disability violates the eighth amendment. and texas is well within the national consensus. there are four states that categorically wholesale adopted one of the current frame works. two of them did so stlag is no material difference in the framework and that test. that is the position they have taken in the reply brief.
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>> can you tell why texas has a different test to determine if a schoolchild is interlekt you'lly disabled? or a juvenile offender. texas hadz a different test, one compatible one with current medical standards in both of the categories. why does it have a different standard? >> the juvenile defender discharge rule in page seven of the reply brief that, adopts the three prong test, the briseno adopted. 380.8779 c 1 now. there are other provisions that incorporate by reference the latest manu afl the dsm. there's others that incorporate the latest manual of the dsm but as it noted there's an ill perfect fit between a determination of legal -- legal determination in a medical diagnosis and since you have the different purposes it is valid for a state to have a different
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definition of when someone is morally cuplable. >> that's exactly the point. that's the point we were making or at least i thought we were. it's to help determine which persons suffering borderline cases of mental disability ought to be executed or should not be because they are less morally culpable. i do think that's what they said. that does supply reason for making differences as he just pointed out. then the question is, is it the purpose or was it to give each state the right to decide in border line cases whom or whom not to execute in light of their feelings about capital punishment. i thought it had a different purpose. unusual in the law but which was to appeal to technical definitions of who and who is
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not mentally retarded or intellectually disabled. that's a real issue. but i think that this case does present that issue. >> and what they said is there's a critical role for the states and while states don't have discretion they do have some discretion and every time the dsm 5 or the next edition comes out the states don't have to automatically wholesale it up because there's a well established test. this test existed for 50 years and the states, there's a national consensus adopting that test. not a national consensus against the relatedness increase. there's not a national consensus that the various factors can't be applied and no state
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prohibits it. three of the states that use the wholesale to current frame works still look at strengths with the hack ket case from pennsylvania is the best example. >> well the problem is that as i read this, it's looking at adaptive strains only and not deficits. and looking at how they form intellectual ability. the states expert testified that he could not from memory recreate a clock. he says i don't quite believe that but she doesn't quite believe that of a person who at 13's father threw hill out because he was dumb and illiterate. couldn't tell the days of the week. couldn't tell the moss of the year. couldn't tell time. couldn't do anything that one
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would consider within an average or even a low average of intellectual functioning. this state's opinion does very little instead of saying those are products of his poor environment. they're not products of his intellectual disability. >> no, when she did not have the adaptive deficits in addition to analyzing and she said there are limitations i see whether it's academic abilities or social skills but there has to be significant limitations and she said that wasn't there. she noted four different times in the course of these proceedings and found the motions and was responsive to questions and was understanding what was going on. >> the factors were fashioned after, he was working on a farm. how is that different from mowing a lawn? and the state had no problem in
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saying that even though he could work, earn a living, planned his trying to hide the depth of the rabbit he killed and he could do all of those things and yet he was not just mildly but severely disabled. why is the fact that he can can mow lawns and play pool indicative of a strength that overcomes all the other deficits? >> lenny was never part of the test. it's not part of the test. it was in the opinion and the court said it was not going to address the second questions that adopted the standards. >> but informed his view of how to judge a lack or strength of adaptive functions. it used the standard. >> no it did not. >> we could see that not only from the fact that what happened was the lenny photograph was an aside and the court adopted the clinical standards. and that's one of the most
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misunderstood aspects of this. >> here's what i have come up with, what you're say as good that the texas court of appeals is complying with atkins because it uses a three pronged test focussing on iq and adaptive function and age and within each of those prongs in order to make this distinction between clinical disability and moral culpability the court can choose how to apply it and particularly what levels of impairment to use. is that a fair assessment? >> i don't believe so. >> even on the adaptive prong analysis that's going to account for skills as he actually adopted the current standards. >> thank you, council. three minutes mr. sloan. >> there was discussion in relation to the criminal standards in the court of appeals decision and i would suggest they look at the american bar association brief because it goes through three decisions of the court of criminal appeals where in each
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of the three decisions and it was unanimous that the texas courts used the factors to conclude he was eligible for execution notwithstanding the expert testimony. my friend said that icon seeded that they could have applied the dsm 4 and rejected the dsm 5 just to be clear and just for the record i did not concede that and if a state is going to reject consensus in the current clinical standard as in that example then there would be a number of factors that the court would look at and what i didn't get to is the absolute requirement to ensure that somebody that's intellectually disabled is not going to be executed. the chief justices initial question about the question presented in addition to the fact that as we did discuss it's innerwoven. we repeatedly used the phrases
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like nonchin cal, unscientific and the state in it's opposition rested heavily on the factors. there's a few pages of the opposition that are specifically directed to that so that was very extensively discussed in the papers at the time. and then dsm 6 comes out would it be your position that those states all have to go back and reconsider what they're doing? people using their best clinical and medical training to refine and sharpen the tools to identify to people. >> and they have been from the day but it is even more clear that they were inconsistent with clinical factors in light of the current clinical standards. my friend was suggesting there's some question about it -- may i finish based on whether, in
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fact, there is a exemption for the intellectually disabled. he was suggesting it's clear there is and i want to call the court's attention to what the court of criminal appeals is saying. and the court said and i quote this court has expressly declined to establish a mental retardation exemption from execution without significantly greater assistance from the legislature.
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would it be your position that all those states would have to go back and reconsider what they're doing? >> they would have to consider them as part of the diagnostic framework. again, these new additions come out once every ten years. but yes, your honor, they represent the scientific method at work, people using best clinical and medical training to refine and to sharpen the tools. identify to people. >> and they have been from the day but it is even more clear that they were inconsistent with clinical factors in light of the current clinical standards. my friend was suggesting there's some question about it -- may i
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finish based on whether, in fact, there is a exemption for the intellectually disabled. he was suggesting it's clear there is and i want to call the court's attention to what the court of criminal appeals is saying. and the court said and i quote this court has expressly declined to establish a mental retardation exemption from execution without significantly greater assistance from the legislature. >> thank you. the case is submitted. c-span, where history unfolds daily n 1979, c-span was created as a public service by america's cable television companies.
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and is brought to you today by your cable or satellite provider. this weekend c-span's city's tour with the help of our cable partners will explore the literary scene and history of chico, california, saturday at noon eastern on book tv. authors tell us about the founder of chico in a book, "john bidwell and california." >> most important and long lasting relationships with the federal government though starting with his days in congress was his close relationship with the united states department of agriculture. he was constantly being sent -- constantly corresponding with officials in the usda and was constantly receiving from them different crops that they wanted tested out in california's soil and climate. and they really used rancho
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chico as one of their early experimental farms at the actually oenld and ran their own. >> sunday at 2:00 p.m. eastern on american history tv. we visit the california state university farm. >> it's the number one industry in california yet. and there's 23 csu campuses, only four of them have agriculture. chico represents the northern part of the state. we draw students from all over california. to get experience in agriculture itself. >> and we'll also go inside the chico museum to the historic chinese alter from the chinese temple. watch c-span cities tour of chico, california, saturday at noon eastern on c-span2's "book tv" and sunday afternoon at 2:00 p.m. on american history tv on c-span3. working with our cable affiliates and visiting cities across the country.
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>> at the white house today, shawn spicer on the investigation being conducted by the house intelligence committee over russia's interference in the 2016 election and he defended the conduct of representative devin nunes who chairs the panel. this is about 40 minutes. >> setting off a chain reaction after diction that spreads from person to person and from family to family. president trump has already taken executive action to strengthen law enforcement and dismantle criminal cartels. he and his team will continue to discuss how best to root out the threat to american communities with drug enforce ment experts as we continue this fight. stopping this epidemic is not -- is an issue that every american regardless of your political
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background can and must get behind. we must work together from the leaders of the most local from most local and community recovery and support programs all the way to the white house to solve this problem. the white house took a big step by meeting with the individuals which concluded new jersey grofrn chris christie who is a leader in this issue, attorney general sessions, duvos, veterans administration secretary, home land security secretary kelly and others were in attendance. a full list of participants has been provided. their desire to see that this problem is addressed is one plaguing communities and i know the president places it at the


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